1. This is an appeal filed by the non-applicant (wife) under section 19 of the Family Courts Act against the judgment and decree dated 28.4.2007, passed by 1st Additional Principal, Distt. Judge of Family Court in H.M.A. Case No. 24/07.

2. The appellant is a non-applicant wife whereas respondent is the applicant-husband in the suit out of which this appeal arises.

3. The respondent-husband filed an application under section 9 of the Hindu Marrige Act against the appellant (wife) seeking a relief of restitution of conjugal rights against the appellant. It is not in dipute that proceedings in the trial Court were decided ex-parte against the appellant and in consequence ex-parte decree was passed against the appellant and in favour of the respondent by the learned Family Judge who allowed the application made by the respondent under section 9 ibid and accordingly granted decree for restitution of conjugal rights in his favour. It is this decree which is impugned by the appellant (non-applicant) i.e., wife before this Court under section 19 of the Family Courts Act.

4. Heard Mr. Y.K. Jain, learned counsel for the appellant and Mr. Manoj Vyas, learned counsel for the respondent.

5. Having heard learned counsel for the parties and having perused the record of the case, we are inclined to allow this appeal and while setting aside of the impugned judgment and decree passed by the learned Family Judge, remand the case to the Family Judge for disposing of the main application under section 9 ibid filed by husband on merits as indicated infra.

6. In our view, the manner in which the learned Family Judge allowed the application made by respondent (husband) cannot be countenanced. The only discussion on merits that we have noticed is contained in paragraph 4 of the impugned judgment. Merely because the non-applicant (appellant herein) was ex-parte and did not file even a written statement, was not enough to allow the application. It was the duty of the Family Judge £0 have examined the entire case of the applicant including the evidence adduced and then keeping in view the law governing the issue a finding should have been rendered. This exercise was not undertaken by the Family Judge and a cursory finding was recorded without properly appreciating the facts and the evidence adduced by applicant.

7. We will be failing in our duty if we do not take note of the subtle observation made by one of the eminent Judge - Vivian Bose, J. in one of the locus classics case of the Supreme Court reported in (AIR 1955 SC 425) Sangram Singh v. Election Tribunal. The learned Judge in his imitable style of writing has made following observations:

"A Code of procedure must be regarded as such. It is procedure of something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leave no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our Laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, the decisions should not be reached behind their back, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

It is these observations which every Judge must keep in consideration while deciding the issues of this nature such as the one arisen in this case.

8. Taking into account the aforesaid principle of law laid down by